The Hustle Issue #88 Sunday, January 12, 2020 Can a corporation "own" a color? A handful of companies have pushed the boundaries of intellectual property law by laying claim to individual colors. But is it really possible to “own” a color? BY ZACHARY CROCKETT On a summer day in 2019, Daniel Schreiber opened his mailbox to find a threatening letter from one of the world’s largest telecom companies. In the letter, Deutsche Telekom AG (the parent company of T-Mobile) accused Schreiber’s small insurance startup, Lemonade, of trademark infringement. Schreiber was confused: He hadn’t used T-Mobile’s name. He hadn’t appropriated the company’s logo or tagline. Hell, he wasn’t even in the cell phone business. But as he read on, he realized his “crime” was using the color magenta. In recent years, companies like T-Mobile have achieved something once thought to be legally impossible: They’ve successfully trademarked individual colors. When a color becomes synonymous with a brand — thinkrobin egg bluejewelry boxes,browndelivery trucks, ororangescissors — a company can claim a certain form of “ownership” over it. But how is it possible for a single corporation to call dibs on a color? And what effect does this exclusivity have on its competitors? A colorful history Under the umbrella of intellectual property law, the 3 most common applications are the trademark, the copyright, and the patent. While corporations routinely file all of these, they use the trademark to (quite liberally) protect anything integral to their brand. Underlegal doctrine, this might be “any word, name, symbol, or device [used to] identify and distinguish” a company’s good or service from its competitors. When a trademark is granted, it gives a company the exclusive right to use that intellectual property in its respective industries. 1,867solid Pantone colors exist; if brands all claim a color, we’ll eventually run out. Shade confusion theory:It would be hard for the consumer to determine the difference between slight shade variations of colors claimed by brands. But everything changed when this stuff came along: 1950s, Owens-Corning was facing steep competition from other fiberglass insulation companies. At the time, all products were the same “naturallytan” hue; to distinguish itself, Owens-Corning decided to infuse their product with dye. For the next 30 years, the company used its uniquepinkinsulation as a marketing tool: It adopted the slogan “think pink,” used the Pink Panther as a mascot, and spenttens of millions of dollarsadvertising the color. In1985, after a 5-year legal battle, Owens-Corning became the first company in American history to successfully trademark a color. Ten years later, a second company, Qualitex, went all the way to theSupreme Courtto defend its right to trademark its signaturegreen-golddry cleaning pads. The court ruled that color could, indeed, serve toidentifya brand — and in doing so, opened up the floodgates for companies to file their own color trademarks. What does it take to trademark a color? In the decades since that Supreme Court case, a number of companies have successfully trademarked single colors. Tiffany & Co. trademarked its famousbluein 1998 — the same year UPS trademarked its “Pullman Brown.” 3M secured its signaturecanary yellowcolor for its Post-it notes, Deutsche Telekom AG protected T-Mobile’s famousmagenta, and Fiskars has one fororangescissor handles. There are even a few you wouldn’t expect: The Wiffle Ball, Inc. has a trademark onyellowfor use in bats, and the estate of the late musician Prince currently has onependingfor the colorpurple. These trademarks aren’t exclusive to businesses, either. The University of Texas at Austin (Pantone 159) and The University of North Carolina at Chapel Hill (Pantone 542) both have protections on their school colors. provethat a single color: Achieves “secondary meaning” (distinguishes a product from competitors and identifies the company as the definitive source of the product) Doesn’t put competitors at a disadvantage by affecting cost or quality Doesn’t serve afunctionalpurpose This last piece, says IP lawyer Robert Zelnick, means that “a color really has to be quite arbitrary” to be trademarked: It can’t be essential to the production of the product or serve any utilitarian purpose. Sometimes, proving all of his can be extremely challenging. General Mills, for instance, hastwice failedto secure atrademarkonyellowfor its Cheerios box, on the grounds that the color isn’t synonymous with the brand since too many other cereal companies use it in their branding. Pepto-Bismol’s attempts totrademarkpinkwere thwarted when a court deemed that the “therapeutic” effect the color had on customers was “functional.” The color wars As the CEO of Lemonade learned, companies thataregranted color trademarks often go to great lengths to enforce them in court — and competitors often challenge their right to monopolize certain hues. Mattelbrought suit against MCA Records for, among other things, allowing the band Aqua to use its trademarkedpinkcolor on its album cover for the single, “Barbie Girl.” The judge famously advised both parties to “chill.” In 2010,Hersheysued Mars for usingorangeon the packaging of a peanut butter candy bar. The suit was later dropped. In 2011,Louboutinaccused Yves Saint Laurent of infringing on its trademarkredshoe soles and won. In 2015, toolmakerDeWaltwon a $54m judgment against a competitor that copied itsblackandyellowcolors, though it was later tossed out on appeal. But one company has beenparticularlyprotective of its color trademark. T-Mobile’s parent company, Deutsche Telekom AG, has spent at least 12 years attempting to prevent competitors — some large, some small — from usingmagenta. Though its trademark covers only a specific variation of the color (Pantone Rhodamine Red U), the company has expanded its definition of magenta to encompass a variety of surrounding hues. Since Deutsche Telekom has its hands in so many projects, it has also been able to defend its trademark in industries outside of telecommunications,rangingfrom fashion to healthcare. In 2008, it went after the rival European wireless carrierTelia. A few months later, it demanded that the tech blogEngadgetdrop magenta from its mobile logo. In 2014, a judgeruledthat AT&T subsidiary Aio Wireless couldn’t usemagentabecause it would confuse T-Mobile customers. fileda motion in Europe to “invalidate Deutsche Telekom’smagentatrademark.” Making changes like this can be costly — especially for bigger firms that spend tens of millions of dollars on marketing and branding strategies. But legal fees can also rack up for the companies that constantly trawl for color trademark violations, begging a question: Is trademarking a color worth all the effort? When a company files a trademark in black and white — say a simple logo — the trademark is actually protected inallcolor variations by default. Nobody can, say, take the McDonald’sredandyellowlogo, make itpurpleandgreen, and claim it as his own. So, why would a brand go through all the trouble of trademarking a color when they likely already have so many other protections? “You only see brands do this when the color is critical to the brand, or sales, or the way the product is marketed,” says Zelnick, the IP lawyer. 62%-90%of a consumer’s initial judgment of a product is based on color. 52%of consumers say the color of packaging is an indicator of quality. Color increases brand recognition by up to80%. So, if you’re thinking about making your entire brand one solid color, go ahead and try your luck. Just don’t pick magenta.
It is just about billable hours...legal teams will try to make a case about anything, if there is money to be made. Might makes right.
If this is the case of T-Mobile, then Crayola was founded in 1885 and they made magenta long ago. Should Crayola sue T-Mobile for using their color? http://www.jennyscrayoncollection.com/2017/10/complete-list-of-current-crayola-crayon.html
%% They could LOL. I think paint companies trademark color names, but they/customers buy +sell colors all the day long...………………………………………………………………………………………………….
That's interesting. No mention of a "Service Mark" in that article. Maybe those lawyers should look that up. There is such a thing. NBC has one on the notes G E C. Same idea really. Hit 1,2,3 in order on this link: https://www.musicca.com/piano As shown below. Prior to 1946, U.S. law limited registered trademarks to tangible goods. The law was changed that year to allow "service marks". In an application made with the U.S. Patent Office on November 20, 1947, NBC filed for service mark protection for use of its chimes in conjunction with the "broadcasting of radio programs". It is sometimes incorrectly stated that this was the first grant of a U.S. service mark. Actually, numerous earlier service marks had been approved, but previously they had been logos or descriptive names for the service being provided. What made the NBC chimes grant unique was that this was the first time that a service — in this case NBC's radio broadcasts — was granted protection for the use of a service mark that was a "purely audible" trademark, or what became to be known as a "sound mark". Sounds like this would be a "color mark". https://en.wikipedia.org/wiki/NBC_chimes#Service_Mark_registration
A company can own a specific color when used in conjunction with a trademark. They can't own a specific color in isolation without reference to their trademark and brand. If a competitor tried to use their exact color but with a different logo and it was determined that the public strongly associated that color with the company's brand, then it's possible that would be breaching their trademark. N.B I didnt read the original article.